Posts Tagged ‘Justice Ruth Bader Ginsburg’

Acting Director Craig E. Leen of the Office of Federal Contract Compliance Programs (OFCCP), an agency within the U.S. Department of Labor that is responsible for enforcing the non-discrimination policies with which federal contractors must comply, issued a “Directive” to agency staff and federal contractors on August 10, construing three recent Supreme Court decisions and two Trump Executive Orders to allow contractors to discriminate in carrying out their contracts based on their religious beliefs.

The first decision cited by Leen is Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court’s June 4, 2018, ruling that reversed a lower court decision against a Denver-area baker who refused to make a wedding cake for a same-sex couple. The Supreme Court did not rule in Masterpiece Cakeshop that businesses have a general right to deny services to gay couples based on the owners’ religious beliefs, however. The Court finessed that issue, finding instead that the lower court’s ruling had to be reversed because the Court discerned evidence that the Colorado Civil Rights Commission had exhibited overt hostility to religion in its treatment of baker Jack Phillips, who refused to bake a wedding cake for a same-sex couples based on his religious objections to same-sex marriage. The evidence for this “hostility” boiled down to public statements by two commissioners, one of whom accurately summarized the legal rule that religious beliefs do not excuse a business from complying with state anti-discrimination law, and the other characterizing as “ugly” the use of religion to justify discrimination. Justice Anthony Kennedy’s decision for the Court emphasized that generally businesses do not enjoy a right to discriminate based on the owners’ religious beliefs, and that a “neutral forum” free of overt hostility to religion could enforce the anti-discrimination laws against a religious objector.

Kennedy’s ruling also contended that Phillips could have believed he was entitled to decline the business because, at the time, same-sex marriages were not allowed or recognized in Colorado, and that the Commission had evinced hostility to religion by dismissing charges brought by a man who was turned down by several bakers who refused his request to make cakes decorated with religiously-based anti-gay scriptural quotes and slogans. The Court’s majority apparently believed the Commission was insufficiently evenhanded in dealing with cases involving religious views.

But Leen’s directive, consistent with two Trump Executive Orders and a Memorandum issued last fall by Attorney General Jeff Sessions, reorients the issue as “discrimination” against religious individuals when they are required to comply with non-discrimination requirements that conflict with their religious beliefs. “Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law,” he wrote, painting individuals and businesses who want their religious beliefs to take priority over any contrary legal obligations as “victims.”

Twisting recent Supreme Court opinions to support this assertion, Leen summarized Masterpiece Cakeshop as holding that “the government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint.” He summarized Trinity Lutheran Church of Columbia, In., v. Comer (2017), in which the Court held that a state could not categorically disqualify religious organizations from receiving state funds for non-religious purposes, as holding that the “government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny.” That case involved the state’s denial of funds to a religious school for repaving its playground, based on a state constitutional provision against providing taxpayer money to religious institutions. Finally, Leen summarized the Supreme Court’s notorious Burwell v. Hobby Lobby ruling (2014), a 5-4 decision, as holding that “the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations.” That case involved a demand by a business corporation owned by a small group of devout Catholics that they should not have to provide contraception coverage for their employees as required by regulations under the Affordable Care Act. Very few federal contractors subject to federal anti-discrimination rules, which apply only to substantial federal contracts, are “closely held corporations,” so that characterization of RFRA does not seem particularly applicable to the cases where this Directive is likely to be implicated.

Leen also cited Trump’s Executive Order 13831, which states, “The executive branch wants faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for grants, contracts, programs and other Federal funding opportunities,” and Trump’s Executive Order 13798, which says, “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. . . Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.” Sessions’ memorandum ran with these directives, asserting that the government should generally refrain from enforcing federal laws against people and businesses that have religious objections to complying with them.

The Directive instructs the OFCCP staff and notifies federal contractors that, in essence, they can discriminate in employing people or providing services under federal contracts if they are doing so based on their religious beliefs. The Supreme Court arguably opened the door to this kind of thinking in the Hobby Lobby and Trinity Lutheran cases, but it is rather a stretch to cite Masterpiece Cakeshop for this purpose, in light of Justice Kennedy’s invocation of Newman v. Piggie Park Enterprises, a 1968 case that held that a southern barbecue restaurant chain could not refuse to serve black customers based on the owner’s religious belief in racial segregation, as well as Employment Division v. Smith, a 1990 case that held that people do not enjoy a Free Exercise right to refuse to comply with state laws of general application that are on their face neutral with respect to religion.

Writing for the Court in Employment Division, Justice Antonin Scalia suggested that allowing individuals to claim exemptions from the law based on their individual religious beliefs unless the government could prove that it had a compelling interest was not required by the First Amendment. “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them,” he wrote. Although the Court’s holding was unanimous in that case, four justices concurred in an opinion arguing that Scalia had gone too far in contending, for a majority of the Court, that there was no need for the government to show there was an important government interest that justified burdening an individual’s free exercise of religion – in that case, a Native American who was denied unemployment benefits when he was fired after he flunked the employer’s drug test due to his ritual use of peyote.

Enforcing religiously-neutral anti-discrimination rules is not “hostility to religion” by the government. It is undertaken to prevent categorical discrimination against applicants and employees or those seeking government-funded benefits or services, because of their personal characteristics, such as race, national origin, sex or sexual orientation. Notably, the federal laws and regulations that OFCCP is supposed to enforce do not apply to government contractors that are religious corporations or associations or religious educational institutions, “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

This “Directive” is not a regulation adopted in accordance with the requirements of the Administrative Procedure Act, and Justice Alito’s opinion for the Court in Hobby Lobby, responding to concerns raised by Justice Ruth Bader Ginsburg in her dissenting opinion, denied that the Religious Freedom Restoration Act could be invoked as a defense in an employment discrimination case. How this will all play out if OFCCP refuses to hold contractors to their non-discrimination requirements in situations involving LGBT victims of religiously-motivated discrimination is yet to be seen, but the portents are not good in light of Trump’s nomination of Brett Kavanaugh to the Supreme Court, where, if confirmed, he would join the conservative majority in place of Justice Kennedy. It is also worth noting that in his concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch, Trump’s first Supreme Court nominee, implied that the Court should reconsider its holding in Employment Division v. Smith.

The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake. Writing for the Court, Justice Anthony M. Kennedy reaffirmed the right of the states to ban discrimination because of sexual orientation by businesses that sell goods and services to the public, but insisted that those charged with discrimination are entitled to a respectful consideration of their religious beliefs when charges against them are being adjudicated. Five other members of the Court – Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Elena Kagan and Neil Gorsuch – joined Kennedy’s opinion. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 2018 U.S. LEXIS 3386, 2018 WL 2465172.

Kennedy found that the particular circumstances of this case fell short of the requirement that government be neutral in matters of religion. During the oral argument of the case in December, he had signaled this concern, making a troubling observation during the argument by Colorado’s Solicitor General, Frederick Yarger, who was defending the state court’s decision against the baker. Kennedy said, “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the State in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.” In his opinion for the Court, Kennedy, noting comments made at the public hearing in this case by two of the state Commissioners, said, “The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

At the first public hearing, wrote Kennedy, “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” This commissioner also said, “If a businessman want to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.” At the second hearing, a different commissioner spoke disparagingly about how “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.” Kennedy found these remarks to constitute disparagement of religion by commissioners who were supposed to be neutral when acting for the government in deciding a case. He emphasized that the record of the hearings “shows no objection to these comments from other commissioners” and that the state court of appeals ruling affirming the Commission’s decision did not mention these remarks.

Kennedy also noted that as of 2012, Colorado neither allowed nor recognized same-sex marriages, so Phillips could “reasonably believe” that he could refuse to make a cake for such a purpose. The factual record suggests that Phillips cited the state ban on same-sex marriage as a reason for his refusal, in addition to his own religious beliefs.

Kennedy invoked a 1993 decision by the Supreme Court, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, in which the Court held that overtly anti-religious bias by a legislative body that had enacted a ban on ritual slaughter of chickens directly aimed at the practices of a minority religious sect violated the Free Exercise Clause. Even though the statute, on its face, was neutral with respect to religion, and thus would normally be enforceable against anyone who engaged in the prohibited practice regardless of their religious or other motivation, the Court found that the openly articulated anti-religious sentiments of the legislative proponents had undercut the requirement of government neutrality with respect to religious practices. The only reason the municipality had passed the ordinance was to forbid ritual slaughter of chickens by members of this particular religious sect. Thus, it was not a neutral law, since it specifically targeted a particular religion’s practice. Similarly, in this case, Kennedy said, evidence of hostility to religion by the Commission members tainted the decisional process.

Kennedy observed that when the Court decided in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that same-sex couples have a fundamental right to marry, it had also noted that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” At the time, dissenting Justices Alito and Antonin Scalia had emphasized the inevitable clashes that might occur in future as those with religious objections confronted the reality of same-sex marriages, and Scalia – as was his usual practice in dissents from Kennedy’s opinions in gay rights cases – ridiculed Kennedy’s statements as falling short of dealing with the clashes that were sure to occur. In this opinion, Kennedy develops the Obergefell dictum about religious objections further, but does not suggest that religious objectors enjoy a broad exemption from complying with public accommodations laws.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, generally joining the Court’s reasoning but disavowing Kennedy’s reliance on evidence from a stunt conceived by William Jack, a religious opponent of same-sex marriage who filed an amicus brief in the case. Upon hearing about the Masterpiece Cakeshop discrimination charge, Mr. Jack had approached three other Colorado bakers, asking them to make a cake decorated with pictures and Biblical quotations derogatory of same-sex marriage and gay people, and all three bakers refused his request because they found the desired product to be offensive. Jack filed charges of religious discrimination against them, but the Colorado commission rejected his charges, finding that the bakers had a right to refuse to make cakes conveying messages they found offensive. Jack then argued – persuasively, in the view of Kennedy, Roberts, Alito and Gorsuch – that the Commission’s different treatment of the charges against the other bakers as compared to its treatment of Jack Phillips showed the Commission’s hostility to religious beliefs. Justice Clarence Thomas, whose separate concurring opinion was joined only by Gorsuch, also found Jack’s arguments persuasive.

Kagan’s concurring opinion argued that the other baker cases were distinguishable. She pointed out that Jack had asked the bakers to make a cake that they would have refused to make for any customer, regardless of their religion or sexual orientation. By contrast, Phillips refused to make a wedding cake that he would happily have sold to different-sex couples but refused to sell to same-sex couples. In the former case, there is no discrimination on grounds prohibited by the Colorado statute. Gorsuch, in his separate concurrence (with which Justice Alito joined), insisted that the three bakers were discriminating against Jack based on his religious beliefs, and insisted on distinguishing between a cake to “celebrate a same-sex marriage” and a generic “wedding cake.”

Interestingly, the Court’s opinion focused on free exercise of religion and evaded ruling on the other main argument advanced by Jack Phillips: that requiring him to bake the cake would be a form of compelled speech prohibited by the First Amendment freedom of speech clause. The Trump Administration had come into the case in support of Phillips’ appeal, but limited its argument to the free speech contention, which Gorsuch and Thomas also embraced in their concurring opinions.

Justice Ruth Bader Ginsburg dissented in an opinion joined by Justice Sonia Sotomayor. She minimized the significance of the statements by the two Colorado commissioners. “Whatever one may think of the statements in historical context,” she wrote, “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. First, the Division had to find probable cause that Phillips violated [the statute]. Second, the [Administrative Law Judge] entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council.”

Ginsburg focused her dissent on a series of statements from Kennedy’s opinion which make clear that the Court’s ruling does not endorse some sort of broad exemption for religious from complying with anti-discrimination laws, including the following: “It is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” “Purveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’” Gay persons may be spared from “indignities when they seek goods and services in an open market.” She pointed out that all of these statements “point in the opposite direction” from the Court’s conclusion that Phillips should win his appeal.

The narrowness, and possibly limited precedential weight of the Court’s opinion were well expressed by Kennedy, when he wrote, “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.” Taking together the date of the incident (2012), the inconsistency Kennedy saw with the Commission’s treatment of the bakers who turned down Jack’s order for the gay-disparaging cakes, and the comments by the commissioners at the hearing, Kennedy wrote, “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.” Justice Kagan agreed that in this case the State’s decision was “infected by religious hostility or bias,” although she (and Breyer) disagreed that the Commission’s treatment of Jack’s complaint against the three bakers supported this conclusion, finding that situation distinguishable.

Gorsuch and Thomas would have gone beyond the Court’s opinion to find a violation of Phillips’ freedom of speech as well. Kennedy wrote, “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.” But he took this issue no further, instead focusing on the hostility to religion he found reflected in the Colorado commission record. Thus, the Court’s holding is narrowly focused on the requirement of neutrality toward religion by government actors. Gorsuch and Thomas, by contrast, found the compelled-speech argument compelling.

The next shoe to drop on the possible significance of this ruling may come quickly. Also on June 4, the Court listed for conference distribution the petition and responses filed with the Court in State of Washington v. Arlene’s Flowers, Inc., 187 Wash.2d 804, 389 P.3d 543 (Wash., February 16, 2017), petition for certiorari filed, July 21, 2017, for discussion at its June 7 conference, the results of which will probably be announced on June 11. Arlene’s Flowers refused to provide floral arrangements for a same-sex wedding, and was found by the state civil rights agency and the Washington state courts to be in violation of the public accommodations statute. Arlene’s petition was filed last summer, but no action was taken by the Court pending a decision of the Masterpiece Cakeshop case. If the Court denies the petition, that would reinforce the view that the Masterpiece ruling is narrowly focused on the evidence of “hostility to religion” by the Colorado Civil Rights Commission, and that absent similar evidence in the Washington state adjudication record, the Court is willing to leave the Washington Supreme Court ruling against Arlene’s Flowers in place. However, the Court might grant the petition and remand the case to the Washington Supreme Court for reconsideration in light of Masterpiece. This could respond to Justice Kennedy’s observation that the Colorado Court of Appeals decision did not even mention the commissioner remarks that aroused Justice Kennedy’s ire at oral argument and that were a significant factor in the Supreme Court’s decision. A remand to the Washington court could implicitly direct that court to examine the adjudication record for any signs of hostility to religion at any stage in that proceeding.

Interestingly, the Oregon Supreme Court recently heard oral argument in a similar wedding cake case, Klein d/b/a Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Court of Appeals of Oregon, December 28, 2017), appeal pending before the Oregon Supreme Court (argued in May, 2018). A ruling by the Oregon court could provide the first sign of how lower courts will interpret Masterpiece Cakeshop, depending whether the Oregon adjudication record shows signs of hostility to religion. Interestingly, this case was instigated not by the same-sex couple who were denied service but rather by the state’s attorney general, reacting to press reports about the denial.

It is occasionally difficult when the Supreme Court issues a ruling in a controversial case to determine exactly what the ruling means for future cases. Ultimately, the meaning of a case as precedent will depend on the factual context of subsequent cases, and on which statements by the justices are seized upon by lower court judges to support their conclusion about how the later cases should be decided. Kennedy’s own words suggest that these analyses will necessarily be heavily influenced by the facts of those cases. As he wrote in conclusion: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

At the oral argument, Phillips and Masterpiece Cakeshop were represented by Kristen K. Waggoner of Alliance Defending Freedom, the Scottsdale, Arizona, based religious advocacy firm whose donors are funding this appeal. Donald Trump’s appointee as Solicitor General, Noel J. Francisco, made his first appearance before the Court in this capacity to argue the Administration’s freedom of speech position. As noted above, Colorado Solicitor General Frederick R. Yarger appeared in support of the Commission’s ruling, and David D. Cole, an ACLU attorney, argued on behalf of Craig and Mullins.

I did an interview on NYC-based radio station WBAI on Monday, June 11, focused mainly on discussing this case. Here’s the link:

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit. The 2nd Circuit ruled in Zarda v. Altitude Express, 883 F.3d 100 (en banc), that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII. As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc. See Bostock v. Clayton County Board of Commissioners, 2018 U.S. App. LEXIS 12405, 2018 WL 2149179 (11th Cir., May 10, 2018).

The question whether Title VII can be used to challenge adverse employment decisions motivated by the worker’s actual or perceived sexual orientation is important as a matter of federal law, and even more important nationally because a majority of states do not forbid such discrimination by state statute. Although Title VII applies only to employers with at least 15 employees, thus leaving regulation of small businesses to the states and localities, its applicability to sexual orientation discrimination claims would make a big difference for many lesbian, gay and bisexual workers in substantial portions of the country where such protection is otherwise unavailable outside those municipalities and counties that have local ordinances that cover sexual orientation claims. It would give them both a federal forum to litigate their employment discrimination claims and substantive protection under Title VII. For example, not one state in the southeastern United States forbids sexual orientation discrimination by statute. In Georgia, individuals employed outside of a handful of municipalities are, like Gerald Bostock in Clayton County, out of luck unless the federal law can be construed to protect them. Thus, an affirmative ruling by the Supreme Court would be especially valuable for rural employees who are unlikely to have any state or local protection. (The question whether a county or city ordinance provides protection depends on where the employer does business, not where the employee lives, so somebody living in Birmingham, Alabama, but working in a factory or a retail business outside the city limits, would not be protected by the city’s ordinance.)

During the first several decades after Title VII went into effect on July 2, 1965, every attempt by LGBT plaintiffs to assert sexual orientation or gender identity discrimination claims was rejected by the Equal Employment Opportunity Commission (EEOC) and the federal courts. Two Supreme Court decisions adopting broad interpretations of the meaning of discrimination “because of sex” have led to a movement to reconsider that old position. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court accepted the argument that an employer who discriminates against a worker because of the worker’s failure to comport with stereotypes the employer holds about sex and gender may have acted out of a forbidden motivation under Title VII. And in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), holding that the interpretation of “because of sex” was not limited to the factual scenarios envisioned by Congress in 1964, the Court rejected the 5th Circuit’s holding that Title VII could not apply to a case where a man was being subjected to hostile environment harassment of a sexual nature by male co-workers. In that case, the Court (speaking unanimously through Justice Antonin Scalia) said that Title VII could be applied to “comparable evils” to those envisioned by Congress. Taking these two cases together as precedents, lower federal courts began to interpret federal laws forbidding sex discrimination to be susceptible to broader interpretations, first in cases involving transgender plaintiffs, and then more recently in cases involving lesbian, gay or bisexual plaintiffs.

The EEOC embraced this movement in the lower federal courts during the Obama Administration in rulings reversing half a century of agency precedent to extend jurisdiction to gender identity and sexual orientation claims. The key sexual orientation ruling is Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), issued just weeks after the Supreme Court’s marriage equality ruling, Obergefell v. Hodges. The EEOC’s rulings are not binding on the federal courts, however, and the agency does not have the power to enforce its rulings without the courts’ assistance. It does have power to investigate charges of discrimination and to attempt to persuade employers to agree to settle cases that the agency finds to be meritorious. The decision that the statute covers sexual orientation also provides a basis to ground retaliation claims under Title VII when employees suffer adverse employment actions because they oppose discrimination or participate in enforcement proceedings.

Plaintiffs bringing these sexual orientation cases in federal courts have had an uphill battle because of the weight of older circuit court decisions rejecting such claims. Under circuit court rules, old appellate decisions remain binding not only on the district courts in each circuit but also on the three-judge circuit court panels that normally hear appeals. Only a ruling en banc by an expanded (eleven judges in the huge 9th Circuit) or full bench of the circuit court can overrule a prior circuit precedent, in addition, of course, to the Supreme Court, which can overrule circuit court decisions. Some have argued, as the petition recently filed in Bostock argues, that Price Waterhouse and Oncale implicitly overrule those older precedents, including the case that the 11th Circuit cites as binding, Blum v. Golf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), a case from the old 5th Circuit. (Congress subsequently split the 5th Circuit, separating off its eastern half to create a new 11th Circuit, which treats as binding old 5th Circuit precedents that have not been overruled en banc by the 11th Circuit.) The 2nd Circuit ruling in Zarda specifically looked to Price Waterhouse and Oncale as well as the EEOC’s Baldwin decision to overrule several earlier panel decisions and establish a new interpretation of Title VII for the federal courts in Vermont, New York, and Connecticut.

Before the Zarda decision, the only circuit court to issue a similar ruling as a result of en banc review was the 7th Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). At the time of Hively, two out of the three states in the 7th Circuit – Wisconsin and Illinois – already had state laws banning sexual orientation discrimination, so the ruling was most important for people working in Indiana. A three-judge panel of the 8th Circuit, covering seven Midwestern states, most of which do not have state laws banning sexual orientation discrimination, will be hearing argument on this issue soon in Horton v. Midwest Geriatric Management, 2017 U.S. Dist. LEXIS 209996, 2017 WL 6536576 (E.D. Mo. Dec. 21, 2017), in which the U.S. District Court dismissed a sexual orientation discrimination claim in reliance on a 1989 decision by an 8th Circuit panel.

Bostock’s petition argues that circuit courts should not be treating as binding pre-Price Waterhouse rulings on this issue. Under this logic, the 8th Circuit panel in Horton should be able to disclaim that circuit’s 1989 ruling, although it is more likely that an overruling would require an en banc hearing, unless, of course, the Supreme Court grants one of the new petitions and sides with the plaintiffs in these cases.

Altitude Express’s petition, by contrast, relies on the Supreme Court’s general disposition against recognizing “implied” overruling, arguing that the 2nd and 7th Circuits have erred in interpreting Title VII to apply to claims that Congress did not intend to address when it passed Title VII in 1964, and that neither Price Waterhouse nor Oncale has directly overruled the old circuit court precedents. While the Altitude Express petition states sympathy, even support, for the contention that sexual orientation discrimination should be illegal, it lines up with the dissenters in the 2nd and 7th Circuits who argued that it is up to Congress, not the courts, to add “sexual orientation” through the legislative process.

A similar interpretation battle is playing out in the circuit courts of appeals concerning gender identity discrimination claims. However, plaintiffs are having more success with these claims than with sexual orientation claims because it is easier for the courts to conceptualize gender identity – especially in the context of transition – as non-conformity with gender stereotypes, and thus encompassed directly within the scope of Price Waterhouse. Although only one circuit court – again the 7th – has gone so far as to embrace the EEOC’s determination that gender identity discrimination claims can be considered discrimination “because of sex” without resorting to a stereotyping theory, most of the courts of appeals that have considered the question have agreed that the stereotyping theory can be put to work under Title VII to allow transgender plaintiffs to pursue their claims in federal court, and many have also applied it under Title IX of the Education Amendments Act of 1972 to find protection for transgender students. If the Supreme Court were to take up the sexual orientation issue, a resulting decision could have significance for gender identity claims as well, depending on the Court’s rationale in deciding the case.

The timing of these two petitions, filed late in the Term and after all oral arguments have been concluded, means that if the Court wants to take up this issue, the earliest it could be argued would be after the new Term begins on October 1, 2018. As of now, nobody knows for certain what the composition of the Court will be when the new term begins. Rumors of the possible retirement of Justice Anthony Kennedy (who will turn 82 in July), likely to be the “swing” voter on this as on all LGBT rights cases, are rife, and although Justices Ruth Bader Ginsburg (recently turned 85) and Stephen Breyer (turning 80 in August) have expressed no intentions of stepping down, they are – together with Kennedy – the oldest members of the Court. Justice Clarence Thomas, a decisive vote against LGBT rights at all times, who was appointed by George H.W. Bush in 1991, is the second-longest serving member of the Court after Kennedy (a Reagan appointee in 1987), but Thomas, who was relatively young at his appointment, will turn 70 on June 23, and most justices have continued to serve well past that age, so occasional speculation about his retirement is probably premature. With the exception of Jimmy Carter, who did not get to appoint any Supreme Court justices during his single term, every president in modern times has gotten to appoint at least two justices to the Court during their first (or only) term. So there is considerable suspense as to the composition of the Court for its 2018-2019 Term. If the Justices are thinking strategically about their certiorari votes on controversial issues, they might well hold back from deciding whether to grant these petitions until they see the lay of the land after the Court’s summer recess.

The Altitude Express petition was filed by Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y. The Zarda Estate is represented by Gregory Antollino and Stephen Bergstein, of Bergstein & Ullrich, LLP. The Bostock petition was filed by Brian J. Sutherland and Thomas J. Mew IV of Buckley Beal LLP, Atlanta, Georgia. The Trump Administration Justice Department sided with Altitude Express in the en banc argument before the 2nd Circuit in Zarda, while the EEOC sided with the Estate of Zarda. The Bostock petition seizes on this divided view from the government representatives in the Zarda argument as yet another reason why the Supreme Court should take up the issue and resolve it once and for all. Numerous amicus briefs were filed for the 2nd Circuit en banc argument. The Bostock 11th Circuit appeal attracted little notice and no amicus briefs.

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit. The 7th Circuit was the first federal appeals court to rule in favor of such coverage. Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex. The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination. (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse. The accounting firm had denied her partnership application. The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory. The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women. The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming. Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff. This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case. A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money. The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision. The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court. In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26. The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda. Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda. After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel. Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well. If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November. If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case? Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules. In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit. Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded. A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation. In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts. A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit). The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs. The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court. After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition. Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal. It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional. If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.) The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement. Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views. Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year. There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

At last, a federal district judge has expressly relied on the EEOC’s ruling from July 2015 that sexual orientation discrimination claims can be brought under Title VII of the Civil Rights Act of 1964.

U.S. District Judge Myron H. Thompson of the Middle District of Alabama, rejecting the recommendation of a U.S. Magistrate Judge that a sexual orientation discrimination complaint under Title VII be dismissed on jurisdictional grounds, determined that the Equal Employment Opportunity Commission (EEOC) was correct when it ruled that sexual orientation discrimination is a form of sex discrimination under Title VII. However, this determination in Isaacs v. Felder, 2015 U.S. Dist. LEXIS 146663 (Oct. 29, 2015), did not do any good for the plaintiff, Roger Isaacs, because the court concluded that his factual allegations included neither direct nor indirect evidence of discriminatory intent in his discharge or treatment by his employer.

Isaacs, a gay man, worked for Felder Services as a dietician for about six months. Felder provides various services to healthcare facilities. Isaacs was assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that organization. He complained that he was subjected to a discriminatory hostile environment at Arbor Springs, and relayed this complaint back to Felder, which asked Arbor to investigate and report.

Meanwhile, Isaacs had also been assigned by Felder to provide dietician services at another facility, in Florala, Alabama, once every three weeks. Isaacs had been injured in a car accident and asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” wrote Judge Thompson, observing that there was a “dispute” about whether Isaacs was authorized to seek expense reimbursements on behalf of his “brother” for these expeditions. He submitted these expenses, and also brought his mother along on some of these trips and submitted for reimbursement of her expenses as well. An administrative assistant at Felder Services raised questions about these expense reimbursements, leading to an internal investigation at Felder. This investigation led to the conclusion that Isaacs was submitting unauthorized expenses for reimbursement, and then Felder’s human resources director received the result of Arbor’s investigation of Isaacs’ allegations about harassment, which found his charges to be unsubstantiated. The results of the expense reimbursement investigation were brought to Felder’s president by the HR director, and they decided to terminate him “based on the improper reimbursement requests.”

Felder asserted Title VII claims of discrimination (by firing him) on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment sexual harassment, and retaliation for claiming about the harassment. The company’s motion for summary judgment was referred to a magistrate judge, who recommended granting the motion as to all three claims. Among other things, the magistrate judge asserted that the sexual orientation claim should be rejected as not actionable under Title VII.

Judge Thompson, conducting de novo review of the record before the magistrate judge, granted summary judgment to the company on all claims, but for some different reasons from those stated by the magistrate judge. Most importantly, Thompson rejected the contention that a sexual orientation discrimination claim could not be brought under Title VII.

“The court rejects the magistrate judge’s conclusion that ‘sexual orientation discrimination is neither included in nor contemplated by Title VII,” wrote Thompson. “In the Eleventh Circuit, the question is an open one,” he wrote, citing to a recent ruling from the Southern District of Georgia, Evans v. Georgia Regional Hospital, 2015 WL 5316694 (Sept. 10, 2015) (where the judge noted that the 11th Circuit hadn’t decided this issue yet). “This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII,” Thompson wrote, citing the July EEOC decision in Baldwin v. Federal Aviation Administration. In that case, he wrote, “the Commission explains persuasively why ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.’ Particularly compelling is its reliance on Eleventh Circuit precedent,” he continued, noting the EEOC’s invocation of Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986), where the 11th Circuit held that discriminating against an employee based on an interracial marriage or association was a form of race discrimination; Thompson was making an analogy to same-sex marriage or associations as sex discrimination. Judge Thompson also cited a 1994 law review article by Northwestern University Professor Andrew Koppelman titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination,” 69 N.Y.U. L. Rev. 197, which made the same argument by analogy to the racial association cases in the wake of the Hawaii Supreme Court’s ruling in Baehr v. Lewin that a ban on same-sex marriage was sex discrimination.

Thompson continued, “To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety,” here again citing Baldwin as well as a concurring opinion in Latta v. Otter, the 9th Circuit’s 2014 marriage equality decision, in which Circuit Judge Marsha Berzon argued that a state ban on same-sex marriage was a form of sex discrimination in violation of the Equal Protection Clause. Judge Thompson quoted a passage from Berzon’s concurring opinion that included a citation to a 1975 law review article by then-professor (now Supreme Court Justice) Ruth Bader Ginsburg titled “Gender and the Constitution” (44 U. Cin. L. Rev. 1), which had helped to provide the theoretical underpinning for the Supreme Court’s subsequent adoption of the view that sex-stereotyping is evidence of sex discrimination.

While determining that the magistrate judge’s recommendation to reject Isaacs’ sex discrimination claim on the basis that Title VII did not apply was incorrect, however, Thompson concluded that Isaacs had failed to allege facts that would give rise to an inference that he was discharged because of his sexual orientation, and he agreed with the magistrate judge that the factual allegations were also insufficient to support Isaacs’ hostile environment and retaliation claims against Felder.

Thompson’s decision is apparently the first by a federal district judge to rely on the EEOC’s Baldwin decision to hold affirmatively that sexual orientation discrimination claims, if supported by sufficient factual allegations, can be brought under Title VII. Since the employer won its motion for summary judgment, there would seem to be no reason for it to seek review of Thompson’s ruling at the 11th Circuit, but the issue might get there if Isaacs were to appeal. He is represented in this lawsuit by Benjamin Howard Cooper of Cooper Law Group LLC, Birmingham, Alabama.

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About the Author

Arthur S. Leonard, a professor at New York Law School since 1982, edits the monthly newsletter Lesbian/Gay Law Notes, and is co-author of Sexuality Law (Carolina Academic Press) and AIDS Law in a Nutshell (West Publishing Co.). He writes on legal issues for Gay City News (New York), and serves as a trustee of the Jewish Board of Family & Children's Services of New York.